The Military in the Constitution

I would have preferred it if the military's "don't ask, don't tell" policy had been repealed by Congress rather than struck down by a federal court. At the same time, I believe that Judge Virginia Phillips's decision to invalidate the policy and then to enjoin its enforcement was justified. Both positions are consistent with each other and our constitutional traditions.

The courts have historically given the military great deference, but there is no military exception to the Constitution.

I have a general and a specific reason for favoring legislative action over judicial action here. The general reason is that any time over 70 percent of the nation opposes a policy, as is the case with "don't ask, don't tell," that opposition is presumptively best expressed through our elected representatives. Such action gives more legitimacy to the ultimate decision because it more clearly hews to the democratic process.

The specific reason for preferring a legislative repeal of the policy is that the Constitution explicitly gives the legislative and executive branches control over the military. Article I of our Constitution grants Congress the power to regulate the military, while Article II makes the president the commander in chief of the armed forces.

Historically, these grants of authority have led the courts to accord extreme deference to the elected branches of government with respect to military issues. In the 1981 case of Rostker v. Goldberg, the Supreme Court rejected a sex-discrimination challenge to the male-only draft by observing that "judicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."

Nonetheless, I support Judge Phillips's decision to strike down the policy. Under our constitutional "case or controversy" requirements, courts are not permitted to reach out and opine on issues merely because they wish to do so.

Conversely, when a case does reach the court, the court is generally under an obligation to decide it according to its interpretation of the Constitution. In 1973, a plurality of the court addressed this point when it raised the level of protection women received under the Equal Protection Clause. The plurality rejected the argument that it should stay its hand because the nation was then debating the Equal Rights Amendment. It recognized that this debate did not absolve the court of the obligation to say what the law was at the time a particular case came over the transom.

Moreover, even the Rostker opinion, rightly viewed as the high-water mark of judicial deference to the military, never stated that military issues were unreviewable by the courts. Phillips's decision recognizes that courts should accord immense deference to Congressional regulation of the military. But her careful 86-page opinion showed that, even with a heavy thumb placed on its pan of the scale, the government had failed to carry its burden of proof.

Indeed, the government rested on the original 1993 justifications for the policy, all of which have been resoundingly disproved in the intervening years. In its conclusion, the court observed that Rostker itself stated that judicial "deference does not mean abdication." In so stating, it simply acknowledged what should be common knowledge: there is no military exception to the Constitution.